Learned something in Constitution class.

[Owen Sparks]

According to the Constitution class I took over the Summer the 2A is specifically worded to prevent the right to keep and bear arms from being infringed by state and local governments.

Notice the First Amendment starts with the phrase “Congress shall make no law…” This means that the federal government could not establish a particular national religion or prohibit the practice of any other. This was a limitation on the power of the federal government not the states.

At the time several states actually had an official state religion. Pennsylvania for example was ‘The Quaker state.’ And only practicing Quakers could hold public office, vote or serve on juries. This practice went on for several decades after the Bill of Rights was adopted.

The Second Amendment however is not limited to Congress. Notice the phrase
“The right of the people to keep and bear arms SHALL NOT BE INFRINGED.” This wording was carefully chosen to limit government at every level from infringing on the right of the people to possess the tools necessary to protect their lives, liberty and property.

 

[tomrkba]

That is pretty neat. But...it's not preventing DC from banning guns through paperwork, fees, classes, and other bureaucratic hoops. Owners cannot carry them outside the home either.

Obviously, all of this is a violation of the Second Amendment. The problem I see is that citizens are not demanding their rights. They just go along with whatever the government demands, even if those demands exceed the government's authority. In the end, this is what is causing the continuous violation of rights across the country.

 

[Cosmoline]

Who's teaching that? It's well accepted that none of the BOR was intended to apply to limit the power of the states at the time of the drafting. That remained true until the 14th was later interpreted to extend those limitations to state governments as well. The First's reference to Congress was superfluous.

 

[JustinJ]

I've read that common interpretation of the 2nd amendment was that it prevented only the federal government from infringing on it up until the 20's and 30's.

Under the 14th amendment, via incorporation doctrine, all of the bill rights, including the 1st amendment, now apply to state and local governments, as they should.

That is pretty neat. But...it's not preventing DC from banning guns through paperwork, fees, classes, and other bureaucratic hoops. Owners cannot carry them outside the home either.

Obviously, all of this is a violation of the Second Amendment. The problem I see is that citizens are not demanding their rights. They just go along with whatever the government demands, even if those demands exceed the government's authority.

As i recall a federal tax stamp on marijuana that was unattainable was overturned by the supreme court. The government first tried to use a tax stamp to avoid the constitutional controversy of outright banning.

It could be argued that regulating firearms is not a violation of the 2nd amendment so long as it is not done to make them unattainable. Obviously determing what is appropriate regulation then becomes a very messy situation.

 

[AWorthyOpponent]

Who's teaching that? It's well accepted that none of the BOR was intended to apply to limit the power of the states at the time of the drafting. That remained true until the 14th was later interpreted to extend those limitations to state governments as well. The First's reference to Congress was superfluous.

The BOR was clearly drafted to be rules governing the power of the central govt. The wording of this document was clearly thought out and I'd have to disagree with you that it was superfluous. As mentioned, it limited the central govt, not states. The second amendment is worded differently for a reason...it shall not be infringed...by anyone.

The 14th amendment has more to do with the definition of citizen and the Civil Rights Act of 1866 giving all citizens equal protection of the law and forcing states to adhere to the law. While it was a good cause, it is also the start of an expanding federal govt that enforces its regulations on states.

 

[Frank Ettin]

I've read that common interpretation of the 2nd amendment was that it prevented only the federal government from infringing on it up until the 20's and 30's. ...

Not sure where you might have read that or who interpreted the Second Amendment thus. And what changed in the '20s and '30s?

In fact, the Supreme Court ruled in 1833 (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)) specifically that none of the Bill of Rights, including the Second Amendment, applied to the States. The Supreme Court also ruled in United States v. Cruikshank, 92 U.S. 542 (1876) and Presser v. Illinois, 116 U.S. 252 (1886) that the Second Amendment did not apply to the States.

It wasn't until McDonald v. Chicago, 561 US 3025 (2010) that the Supreme Court finally applied the Second Amendment against the States.

...Under the 14th amendment, via incorporation doctrine, all of the bill rights, including the 1st amendment, now apply to state and local governments, as they should...

That is not correct. A number of rights enumerated in the Bill of Rights have not been incorporated against the States or have been ruled not to apply against the States:

• Third Amendment: The right not to be compelled to quarter soldiers has been specifically incorporated only in the Second Circuit. It appears that the has been no other ruling on that question.
  
  
• Fifth Amendment: The right to indictment by a grand jury has been specifically not incorporated (Hurtado v. California, 110 U.S. 516 (1884)).
  
  
• Sixth Amendment: The right in a criminal trial to a jury selected from residents of the state and district where the crime occurred has not been incorporated (Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980)).
  
  
• Seventh Amendment: The right to a jury trial in a civil case has been held not incorporated against the States (Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)).
  
  
• Eighth Amendment: The question of the incorporation of the right to protection against excessive fines has not been addressed.

 

[JustinJ]

The BOR was clearly drafted to be rules governing the power of the central govt. The wording of this document was clearly thought out and I'd have to disagree with you that it was superfluous. As mentioned, it limited the central govt, not states. The second amendment is worded differently for a reason...it shall not be infringed...by anyone.

Only the first amendment indicates a limit on congress. None of the other amendments of the BOR specify congress. There are no grounds to say the BOR, except the second amendment, limits just the federal government. Based on the wording of amendments 2 through 10 one can only conclude they apply to the same levels of government.

Also, if we interpret the first amendment to limit only congress that would mean local and state governments can limit free speech, press, assembly and petition of grievances.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The use of "or" clearly indicates "congress shall make now law" applies to all of the amendment.

 

[Frank Ettin]

Only the first amendment indicates a limit on congress. None of the other amendments of the BOR specify congress. There are no grounds to say the BOR, except the second amendment, limits just the federal government. Based on the wording of amendments 2 through 10 one can only conclude they apply to the same levels of government....

Again, you don't understand the law. As the Supreme Court has ruled back in 1833, none of the Bill of Rights applies to the States.

..if we interpret the first amendment to limit only congress that would mean local and state governments can limit free speech, press, assembly and petition of grievances...

And that was indeed the case until the rights enumerated in the Bill of Rights started to be incorporated against the States through the Fourteenth Amendment. Of course, there might have been provisions in State Constitutions that would to some extent constrain state governments.

 

[Cosmoline]

As mentioned, it limited the central govt, not states. The second amendment is worded differently for a reason...it shall not be infringed...by anyone.

I've never heard that interpretation before, and it flies in the face of over 200 years of jurisprudence and law. Prior to the 14th and its subsequent interpretation the BOR was viewed as limiting the power of the central government, not the states. Only with the doctrine of incorporation did it get extended to limit state power.

Also, you seem to be saying that the Second was intended to apply to limit the ability of corporations and individuals to restrict the RKBA. For example, by telling people they can't carry firearms in a house.

The 14th amendment has more to do with the definition of citizen and the Civil Rights Act of 1866 giving all citizens equal protection of the law and forcing states to adhere to the law. While it was a good cause, it is also the start of an expanding federal govt that enforces its regulations on states.

And as part of that, the 14th extended the restrictions of most of the BOR's onto the state governments. Look up incorporation doctrine.

Also, if we interpret the first amendment to limit only congress that would mean local and state governments can limit free speech, press, assembly and petition of grievances.

Well remember that the states ALSO had and continue to have their own Constitutions with similar restrictions as well as direct legislative checks on such measures. IIRC, most of the 13 original constitutions predated the federal one and many served as models. But yes, prior to incorporation it would not have been possible for a citizen to overturn a state law restricting freedom of religion based on the FEDERAL First Amendment. They'd have to challenge it based on the state constitution.

 

[kr8ter]

The people who wrote the second amendment can't stop people today who wish to infringe on your "right" to bear arms, no matter how they worded it. Liberty can't be granted or taken by words, it can only be earned or taken by force. The people who wrote the second earned that liberty, people today have not. The government today infringes your "right to bear arms" because the people allow it. Stop thinking that somebody else is responsible for your liberty.

 

[stubbicatt]

Actually, in context, notice that the only armed force provided for in the US Constitution was the Navy. There is no provision for an Army. This was intentional. The framers were only recently acquainted with the requirement of "billeting." So they decided to utilize a Militia, comprised of all able bodied men, and in order to keep the Militia "well regulated" (well equipped) they decided the right of the people to keep and bear arms shall not be infringed.

There you have it.

 

[zoom6zoom]

Notice the First Amendment starts with the phrase “Congress shall make no law…”

and a lot of us think they should have stopped right there.

 

[beatledog7]

I've often made the argument regarding the distinction between "Congress shall" and "shall not be," but it rarely has traction. The concept of incorporation stands variously applied. For an issue where SCOTUS likes the idea that states ought to be bound by the BOR, they are. When the justices don't want it to apply, it doesn't (see examples in post #6).

Further, Frank's note...

In fact, the Supreme Court ruled in 1833 (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)) specifically that none of the Bill of Rights, including the Second Amendment, applied to the States. The Supreme Court also ruled in United States v. Cruikshank, 92 U.S. 542 (1876) and Presser v. Illinois, 116 U.S. 252 (1886) that the Second Amendment did not apply to the States.

It wasn't until McDonald v. Chicago, 561 US 3025 (2010) that the Supreme Court finally applied the Second Amendment against the States.

...doesn't clear it up at all, really. If 2A really applies to the states, how can they still be allowed to "infringe." Oh, yeah, it's that little "reasonable regulation" ≠ "infringement" thing.

This is why we must remain ever vigilant against any Federal regulation re: RKBA, even those we think would be good (like CCW reciprocity), and why we must all keep the pressure on state legislatures to keep their paws off.

 

[JustinJ]

Again, you don't understand the law. As the Supreme Court has ruled back in 1833, none of the Bill of Rights applies to the States.

Without reading the comments i was replying to that statement is taking out of context. I was replying to a statement that seemed to imply that the second amendment exceptionally applied to local and state governments. My point was that there is no wording in the Bill of rights that indicates the second amendment has application beyond amendments 3 through 10.

And i assume you meant "none of the Bill of Rights applied to the States"?

Not sure where you might have read that or who interpreted the Second Amendment thus. And what changed in the '20s and '30s?

I believe what i read was more in regards to public opinion but can't say for sure.

It wasn't until McDonald v. Chicago, 561 US 3025 (2010) that the Supreme Court finally applied the Second Amendment against the States.

I thought there were other rulings regarding the issue prior to McDonald but i may be thinking of challenges to federal laws.

That is not correct. A number of rights enumerated in the Bill of Rights have not been incorporated against the States or have been ruled not to apply against the States:

Yes, i was mistaken. Almost all of the BOR have been incorporated.


Regardless of court decisions, i do find it difficult to believe the founders did not intend for the BOR to limit state governments as well, based on wording. I can see how the first amendment could be interpreted that way but not the rest.

 

[Frank Ettin]

...Further, Frank's note...

In fact, the Supreme Court ruled in 1833 (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)) specifically that none of the Bill of Rights, including the Second Amendment, applied to the States. The Supreme Court also ruled in United States v. Cruikshank, 92 U.S. 542 (1876) and Presser v. Illinois, 116 U.S. 252 (1886) that the Second Amendment did not apply to the States.

It wasn't until McDonald v. Chicago, 561 US 3025 (2010) that the Supreme Court finally applied the Second Amendment against the States.

...doesn't clear it up at all, really. If 2A really applies to the states, how can they still be allowed to "infringe." Oh, yeah, it's that little "reasonable regulation" ≠ "infringement" thing....

Nothing in the Constitution (or any law, for that matter) is "self-implementing", and there will always be disputes about how this provision or that clause applies in a particular situation. Resolving those disputes is what the courts are for. It's even provided for in the Constitution(Constitution of the United States, Article III, Sections 1 and 2):

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

... i assume you meant "none of the Bill of Rights applied to the States"?...

Yes, thank you.

 

[ApplePie]

>>“The right of the people to keep and bear arms SHALL NOT BE INFRINGED.”<<

It's funny how whenever we quote the 2nd amendment, we conveniently leave out the preamble. It's that darn militia clause that has caused so many people to mis-interpret this amendment. I'm SO happy the Supreme Court agreed this is an individual right. However, this does not keep MANY people from still firmly believing this is a right reserved to "a well-regulated militia".